“ Requisition Reply Warning: “Replies to Requisitions 4.2 and 6.2 are treated as a solicitor’s undertaking” 4.2 “If we wish to complete through the post, please confirm that (a) you undertake to adopt the current Law Society’s Code for Completion by Post; and (b) the mortgages and charges listed in reply to 6.1 are those specified for the purposes of paragraph 3 of the Code.” “Confirmed” 6 Warning “A reply to this requisition is treated as an undertaking. Great care must be taken when answering this requisition.” 6.1 “Please list the mortgages or charges secured on the property which you undertake to redeem or discharge to the extent that they relate to the property on or before completion . . .” “National Westminster Bank plc charge dated 8/11/05 and Michael Kenny charge dated 3/10/05” 6.2 “Do you undertake to redeem or discharge the mortgages and charges listed in reply to 6.1 on completion and to send us Form DS1, DS3, the receipted charge(s) or confirmation that notice of release or discharge in electronic form has been given to the Land Registry as soon as you have received them.” “Yes” 6.3 “If you agree to adopt the current Law Society’s Code for Completion by Post, please confirm that you are the duly authorised agent of the proprietor of every mortgage or charge on the property which you have undertaken, in reply to 6.2, to redeem or discharge.” “Confirmed”
“We will advise you shortly of what action we propose to take to enable us to comply with our undertaking.”
“ . . . . (2) Although the jurisdiction is compensatory and not punitive, it still retains a disciplinary slant. . . . (3) If the misconduct of the solicitor leads to a person suffering loss, then the court has power to order the solicitor to make good the loss occasioned by his breach of duty . . .. . . (4) Failure to implement a solicitor’s undertaking is prima facie to be regarded as misconduct on his part, and this is so even though he has not been guilty of dishonourable conduct: . . . . . (5) Neither the fact that the undertaking was that a third party should do an act, nor the fact that the solicitor may have a defence to an action at law . .. precludes the court from exercising its supervisory jurisdiction . . . However, these are factors which the court may take into account in deciding whether or not to exercise its discretion and, if so, in what manner. (6) The summary jurisdiction involves a discretion as to the relief to be granted . . . . .In the case of an undertaking, where there is no evidence that it is impossible to perform, the order will usually be to require the solicitor to do that which he had undertaken to do . . . . (7) Where it is inappropriate for the court to make an order requiring the solicitor to perform his undertaking, eg. on the grounds of impossibility, the court may exercise the power referred to in paragraph (3) above and order the solicitor to compensate a person who has suffered loss in consequence of his failure to implement his undertaking . . .”
“The modern doctrine seems to me to be stated in Fry at p. 466: “As the consent of a third party is, or may be, a thing impossible to procure, a defendant who has entered into a contract to the performance of which such consent is necessary, will not, in case such consent cannot be procured, be decreed to obtain it, and thus perform an impossibility.”” “As the consent of a third party is, or may be, a thing impossible to procure, a defendant who has entered into a contract to the performance of which such consent is necessary, will not, in case such consent cannot be procured, be decreed to obtain it, and thus perform an impossibility.””
“13. . .. Accordingly, the bank is entitled to deal with the matter as it thinks fit in the light of the situation as it now is. I cannot see as a matter of general principle that there is any possible basis for arguing that the bank should be required to accept the sum which it would have accepted had the appropriate request been made in 2006. . . . . 16. . . . the defendant firm is no doubt backed by its indemnity insurers and all that is required is a cheque to be written for the sum in question. There is no impossibility there. The only problem from their point of view is that it now costs rather more to perform the undertakings than they think it would have cost had they dealt with them as they should have done, two years ago. However, that is their misfortune and is not a surprising result of the breach of undertaking in the first place.”
“The only rider I would add is that there is a liberty to apply in the order and if the bank were now to change its stance and to require terms which appear wholly unreasonable or to go beyond the scope of anything which could possibly have been contemplated when the undertaking was originally given, there may then, and I say no more than that, there may be a case for applying to the court to discharge the existing order and replace it with an inquiry as to damages suffered by the purchasers.”
“Although anything that I say on this issue will necessarily be obiter, I am prepared to acknowledge that, if a mortgagee were to insist upon its entitlement to receive, by way of redemption, a payment considerably in excess both of any sum that could reasonably have been contemplated at the time when the solicitor’s undertaking was given, and also the present unencumbered open market value of the relevant property, then the court might in accordance with the interests of justice, refuse to order the summary enforcement of the undertaking (or discharge an existing order to do so), and order the payment of compensation for breach of the undertaking instead. . . . . But in the light of the pragmatic attitudes adopted by the mortgagees in the present case, I am entirely satisfied that this is not a case in which such a course might fall to be considered. Even if this were such a case, however, I can see no warrant, either in law or in equity, for seeking to interfere in any way with the terms, or the extent, of either of the mortgagees’ securities.”